Disparately resourced public defenders prepare for end of cash bail in Illinois

Illinois on Monday will become the first state to fully abolish cash bail through an act of the legislature — a major criminal justice overhaul spurred by the advocacy of a progressive faction of the Democratic Party that’s grown increasingly powerful in recent years.

The reform goes into effect after nearly three years of brutal legislative and political fights over the SAFE-T Act, one of several massive pieces of equity-focused legislation pushed by the Illinois Legislative Black Caucus in the wake of nationwide protests in 2020 over injustices faced by Black Americans and systemic racism more broadly.

Criminal justice reform advocates have been working toward Monday’s rollout for years, beginning with the premise that an arrestee’s ability to post bond does not equate with the danger he or she poses to the community. While some charged with violent crimes like domestic battery were able to buy their way out of jail under the old system, others were left sitting in jail for weeks or months because they can’t afford bail, sometimes for low-level offenses.

This cost some their jobs, homes or even parental rights in the process.

“As a defender, one of the hardest things I have to do is have conversations with mothers, sisters…how are they gonna pull together the money to get their person out of jail?” Cook County Public Defender Sharone Mitchell, who was heavily involved in crafting the law in his previous job at the Illinois Justice Project, said at a recent media briefing about the end of cash bail.

“Judges never had crystal balls and never will have crystal balls,” he said, adding that he believes the Pretrial Fairness Act — the bail reform portion of the wider-ranging SAFE-T Act — will help improve judges’ decision-making when considering whether to detain an arrestee.

But while the end of cash bail is supposed to create a more equal justice system, the months of preparation leading up to the SAFE-T Act’s full implementation have accentuated profound disparities between the court systems in each of Illinois’ 102 counties.

And no matter how the local officials feel about the end of cash bail and the state’s overhaul on pretrial procedures, they’re responsible for implementing the law with whatever resources they have – a reality even some of the law’s most ardent opponents have acknowledged.

Counties face disparate resource challenges

Some bigger counties are better prepared than others for the changes required by the PFA. Cook County, for example, is one of a few counties that has for years been moving toward limiting the use of cash bail. Additionally, the county’s criminal courthouse on Chicago’s near-south side has for years been holding bond court every day of the week – a practice shared by other larger county court systems in Illinois.

Beginning Monday, that courthouse will hold initial appearance hearings at midday, along with longer detention hearings every morning and afternoon. During a media briefing last week, Cook County Judge Mary Marubio, who presides over the county’s pretrial division, outlined how these hearings will be organized across multiple courtrooms in the criminal courthouse in Chicago.

“It’s not so different from how we release people now, it’s just that money will no longer be a condition of release,” Marubio said.

Mitchell has also been beefing up his staff at the public defender’s office since he was appointed in early 2021. A spokesperson for the office said increasing staffing was a priority for Mitchell regardless of the PFA’s requirements, and the office has hired “well over 100” new attorneys since 2021. Mitchell also created a Pretrial Division in anticipation of bail reform’s original Jan. 1 implementation date, and 21 attorneys have been assigned to that unit.

It’s an entirely different story in southeastern Illinois, where Nathan Rowland is the part-time public defender serving Gallatin County, which borders Indiana, and neighboring Hamilton County. Those counties have a combined population of nearly 13,000, per 2020 U.S. Census data.

Rowland, who serves as president of the Illinois Council of Chief Defenders, is one of a handful of part-time public defenders in Illinois who contract with more than one county. But his status as a part-time public defender is much less rare; more than half of Illinois’ 102 counties don’t have full-time public defenders.

Per state law — which hasn’t been updated since 1949 — only counties with 35,000 or more residents are required to set up offices of public defender, and even then, they’re not required to be full-time. Counties with populations of less than 35,000 aren’t required to establish a public defender program, though in modern history even the smallest of counties have at least contracted part-time public defenders, while others have voluntarily hired full-time PDs.

Rowland does his public defender work out of his law office in McLeansboro in Hamilton County, appearing in court across the two counties as needed when he’s assigned clients who can’t afford an attorney — usually after defendants’ initial bond hearings. But after Monday, his presence will be required at every initial condition and pretrial detention hearing for newly arrested defendants. Rowland noted that this is a much greater challenge for judicial systems in rural areas of the state than it is in counties like Cook.

While supportive of bail reform, Rowland also predicts the first several months under the new pretrial system will be difficult, especially in places with judicial systems vastly different than places like Cook and the collar counties.

“They’re used to running court all day every day anyway,” he said of Cook County’s existing bond court schedule. “In other parts of the state, we’re doing something that we have never done before and have not been set up to do.”

Late last month, the Illinois Supreme Court issued an order allowing pretrial hearings to take place remotely for six months. Rowland said without the ability to use videoconference technology for the pretrial hearings, counties like his would be unable to comply with the PFA’s requirement that arrestees appear in front of a judge within 48 hours.

It’s not just Rowland’s limitations as a single part-time public defender serving two counties; he noted that getting all parties together in one courtroom has always been difficult. Neither Gallatin nor Hamilton counties run their own jails, so arrangements must be made with the sheriff’s office from the White and Saline county jails to transport detainees.

Court reporters are also in short supply, and state’s attorneys offices in some counties are also one-person operations, Rowland said. Judges also travel from courthouse to courthouse in the 12 mostly rural counties of the state’s Second Judicial Circuit.

“In both of the counties that I practice in, after Thursday at noon, generally there’s no judge in the county until Monday at 9 (a.m.),” Rowland said. “We don’t have judges assigned to either of these counties on Fridays at all…Some counties only have a judge scheduled twice a week or three times a week.”

Even before the COVID-19 pandemic necessitated the adoption of virtual hearings, Rowland said local court systems had started experimenting with remote court, and he predicted those lessons would help after Monday. But if he or another person whose presence is required for pretrial hearings gets sick or goes on vacation, Rowland said the cases would likely just have to be rescheduled.

Nearly 100 miles northwest of Rowland’s law office, St. Clair County Public Defender Cathy MacElroy is gearing up for what she expects to be a rocky road for the next two years. In December, just weeks before cash bail was originally set to end in Illinois, MacElroy alerted the county’s chief judge that her office’s workload was so dire, the public defender could no longer accept any new cases.

At the time, the five full-time attorneys in the office were each handling more than 350 cases in 2022 — well above the American Bar Association’s recommended guideline of 150. Since then, MacElroy said things got better, but the reprieve didn’t last. County officials made the public defender job full-time in January, and MacElroy was able to increase the base pay for attorneys in her office and recruit two more defenders.

Attorneys in the public defender’s office have since lowered their caseloads down to around 200 cases per year, but MacElroy expects that number to begin climbing again after Monday.

“We have a lot of violent crime in the county,” she said. “Each of my full-time lawyers has at least 10 murder (cases)…And this week in my county from Friday until now there have been five murders charged. I don’t know what happened in the last week, but that’s kind of like what we’re dealing with. We get rid of one (case) and five more appear.”

Additionally, in recent months, the public defender’s office has lost two full-time lawyers, including one who moved over to the state’s attorney’s office and is making roughly $10,000 more, MacElroy said.

She’s already hired a recent law school graduate who expects to be fully licensed in November and is hopeful to hire an eighth attorney. But the competition for public interest attorneys is fierce, MacElroy said, as “every state’s attorney and public defender’s office in the state basically is hiring right now” due to the demands of Illinois’ pretrial overhaul.

The state has appropriated $10 million for public defenders to help implement the Pretrial Fairness Act, with the state’s 101 counties outside of Cook each receiving between $77,000 and $147,555.

While MacElroy is grateful for that funding – and generally supportive of the concept of ending cash bail – she said St. Clair County’s portion of that appropriation isn’t as much as she’d hoped, especially if it’s funding that won’t be reallocated in future years.

Beginning next week, those already jailed can petition for hearings to be released under the PFA’s guidelines. They would be entitled to a detention hearing on a timeline set in law based on the seriousness of their alleged crime.

For Rowland’s area of the state, this is not a big number.

“In one county we’ve got two people in custody and we know we’re gonna have hearings on them on Monday,” Rowland said. “In another county, I’ve got three people in custody and I’m gonna be having hearings on them on Wednesday.”

In Cook County, current detainees numbered nearly 5,400 on Friday, according to the sheriff’s daily report. Mitchell said last week that petitions for pretrial release within the current jail population would be assessed on a “case-by-case basis.”

MacElroy predicts the group of 150 or so current St. Clair County Jail detainees she already filed petitions for could have their days in court and released within the next week. She added that the county’s state’s attorney’s office has also filed detention petitions for approximately 250 people currently in jail. As those cases all fall under the detainable crimes according to the law, MacElroy predicted they’ll be heard over the next few months.

Help from the state

Illinois is one of seven states without any oversight mechanism for monitoring how effectively counties’ court systems help defendants exercise their right to counsel for trial via the public defender’s office, according to a 2021 study commissioned by the Illinois Supreme Court. The resulting report from the Boston-based Sixth Amendment Center warned that Illinois’ framework limits the independence of public defenders and makes for inadequate representation in counties where PDs are overworked.

More than half of states directly fund public defenders instead of leaving funding up to counties like Illinois does.

While the state isn’t any closer to creating a statewide public defender system, the Illinois Office of Statewide Pretrial Services represents a major step forward in providing resources to judicial systems across the state. As of October 1, OSPS will partner with 71 counties. For months, it’s been offering services like compiling information about new arrestees. OSPS is also charged with helping connect those who are released from jail with services like drug treatment or anger management, whether voluntary or ordered by the court.

The agency has hired pretrial service officers embedded in 47 of the 71 OSPS-affiliated counties so far Those officers are responsible for quickly preparing reports on new arrestees’ criminal histories and professional backgrounds based on interviews with the defendant and associated fact-checking. The reports are then sent to public defenders, state’s attorneys and judges.

A few dozen counties in Illinois already had their own versions of pretrial service offices. But OSPS has lightened the load for some of them, like the court’s probation department in St. Clair County, which opted into OSPS.

But in counties that have never had any formalized pretrial service office, Rowland said OSPS’ work has proven extremely helpful to the entire judicial system, but particularly to his work as a public defender. Prior to last year, he said he’d walk into hearings totally blind, having never met his client and not knowing “anything about him.”

“Right before the hearing…I’d be standing over in the corner (saying), ‘This is what you’ve been charged with. Where you living? You got a job?’” Rowland said. “I (didn’t) know any of that.”

Pretrial service officers begin their days early in the morning, and Rowland said he’s been receiving reports on new arrestees oftentimes before 8 a.m.

In August, OSPS began oversight of electronic monitoring in participating counties, and began picking up the tab for those ordered to wear the GPS tracking devices – fees that would sometimes drive the poorest defendants into debt.

MacElroy said she was glad her clients would no longer be saddled with the cost, but also noted that in St. Clair County, electronic monitoring isn’t used “a ton.”

She predicted that under the PFA, judges might even order ankle monitors less often, as prosecutors would have to present specific findings for why the GPS tracking would be necessary. The PFA requires judges to find the “least restrictive” pretrial conditions necessary for a defendant, and the law provides that individuals on electronic monitoring can have two days per week to move freely so they can accomplish daily tasks.

But despite the assistance OSPS is giving, not all areas of the state will adopt electronic monitoring. In rural southeastern Illinois, for example, defendants typically had not been able to afford the daily fees associated with ankle monitor use, so electronic monitoring has historically been rare. But, as Rowland pointed out, many rural areas face a much more basic logistical hurdle: large swaths of land with neither cell phone coverage nor reliable broadband — or even landline — service.

“Well, you’ve lost signal,” Rowland imagined an OSPS employee saying as they cite a defendant for non-compliance. “Well, what does that mean? They’ve tampered with the device or they’ve just lost signal because of where they’re at?”

Rowland said defense attorneys would be “on guard against” increased use of electronic monitoring in his area of the state, saying he worries it could set his clients up for failure in the judicial system.